SEC Power Overseas

A couple of weeks ago, a three-judge panel of the United States Circuit Court (for the non-lawyers: the highest Federal courts except for the Supreme Court) decided the case of SEC v Scoville, which in effect held that the SEC has enforcement powers against alleged securities frauds which are primarily extra-territorial.

Attorneys and those wedded to arcane analysis should revert to the case; the facts are complex and the decision arguably does not resolve the question of how far the arm of the SEC reaches.  And, the minority justice on the panel simply said that the Dodd-Frank Act just granted jurisdiction to the SEC, period, a conclusion not clear from statutory history.  Further, a 2010 SCOTUS decision, Morrison, was widely understood to require misconduct connected with US transactions; that understanding seemingly still applies to private lawsuits, but not necessarily to SEC enforcement.  This bifurcated result is defensible based on legal analysis, but perhaps anomalous if your step back and take a logical look.

What is the impact of this decision?  First, we have not heard from other Circuit Courts and they may disagree with Scoville, setting up an ultimate Supreme Court resolution of differing Circuit decisions.  Second, certainly the SEC, long seeking authority to chase off-shore frauds, at least for now will be more aggressive in selecting the cases they bring.

In the late 60s and early 70s I recall arguing to the First Circuit Court of Appeals that US-based brokerages were not liable for acts outside the United States, period, even if involving US securities and even involving US citizens. Claimants replied that protecting US investors when they were living or just traveling overseas, and keeping US-based firms generally ethical, were valid exercises of SEC power (and indeed also a basis for civil liability on behalf of injured investors, which was a viable argument pre-Morrison).  The law today still bars private rights of action in most offshore cases, but Scoville clarifies a rationale for SEC activity and, thus, at least some recourse for the allegedly defrauded.


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